OVERVIEW OF CRIMINAL PROCEDURE ACT IN NIGERIA

OVERVIEW OF CRIMINAL PROCEDURE ACT IN NIGERIA

OVERVIEW OF CRIMINAL PROCEDURE ACT IN NIGERIA

The Criminal Procedure Act (CPA) was enacted in 1945 as Cap 43, Laws of the Federation of Nigeria, 1958 and later re-enacted as Cap 80, Laws of the Federation of Nigeria, 1990. However, it is now Cap 41, Laws of the Federation of Nigeria 2004. Initially, the Criminal Procedure Act (CPA) had general application throughout Nigeria.

However, from 1963, its application was restricted to the High Courts and Magistrates’ Courts in states making up the then Southern Region; now comprising – Abia, Akwa Ibom, Ebonyi, Delta, Edo, Ekiti, Ondo, Oyo, Ogun, Osun, Enugu, Rivers, Imo and Bayelsa. Lagos State is the only exception given the application of the Administration of Criminal Justice Law 2011. The applicable states have re-enacted the provisions of the Criminal Procedure Act (CPA) as Criminal Procedure Laws of the Various States.

Additionally, by virtue of section 33 of the Federal High Court Act, Cap 134, Laws of the Federation of Nigeria 1990, the Criminal Procedure Act (CPA) also applies to the proceedings of the Federal High Court.

Also, the Criminal Procedure Act (CPA) is applicable to the proceedings of a Military Court Marshal. However, by virtue of section 493 of ACJA, the criminal procedure act has been repealed and replaced with the Administration of Criminal Justice Act, 2015. The criminal procedure act is made of 12 chapters divided into 488 sections.

Ensuring access to effective legal assistance at the investigative stage of a criminal process involves particular demands, and requires an effective mechanism for ensuring that suspects are informed of their right to legal assistance at this stage; a transparent and accountable mechanism for ensuring that a suspect can make an informed choice in legal representation, free from undue influence; an effective mechanism for contacting a suitably qualified lawyer or paralegal without delay.

Therefore, the right of an accused person to the counsel of his choice as guaranteed in the constitution is also provided for in the criminal procedure act. Both the complainant and defendant shall be entitled to conduct their respective cases in person or by a legal practitioner.

Where the defendant is in custody or on remand he shall be allowed the access of such legal practitioner at all reasonable times. The right to counsel under this Act is available to accused persons even at the police station.

The right to fair hearing is guaranteed to the accused under the Criminal Procedure Act. After the case for the prosecution is concluded the accused or the legal practitioner representing him, if any, shall be entitled to address the court at the commencement or conclusion of his case, as he thinks fit.

If the defendant is not represented by a legal practitioner the court shall at the close of the examination of each witness for the prosecution ask the defendant whether he wishes to put any questions to that witness, and shall record his answer on the minutes. In a bid to uphold the constitutional right of an accused person, section 287 provides thus:

287 (1) At the close of the evidence in support of the charge, if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence and- (a) if the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely- (i) he may make a statement, without being sworn, from the place where he then is; in which case he will not be liable to cross-examination; or (ii) he may give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross-examination, or (iii) he need say nothing at all, if he so wishes, and in addition the court shall ask him if he has any witnesses to examine or other evidence to adduce in his defence and the court shall then hear the defendant and his witnesses and other evidence, if any; and (b) if the defendant is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence.

Where a person is accused of a capital offence the State shall, if practicable, be represented by a law officer, or legal practitioner and if the accused is not defended by a legal practitioner the court shall, if practicable, assign a legal practitioner for his defence.

A combined reading of Section 352 of the Criminal Procedure Act and Section 7 (1) and second schedule of Legal Aid Act, it is barefaced that in matters such as murder, manslaughter, wounding or inflicting grievous bodily harm, assault occasioning actual bodily harm, rape, stealing, common assault and affray, the court will make available the service of a legal practitioner to the accused person.

Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later. Furthermore section 353 provides that after the plea of the accused to the information or any count thereof has been recorded, it shall no longer be open to the accused to raise with respect to his case any objection relating to the validity of any of the following matters, that is to say- (a) the preliminary inquiry; (b) the committal for trial; (c) any direction or consent given in the case by a Judge in pursuance of section 340(2)(b) of this Act.

Under the Criminal Procedure Act, the accused person or his legal representative is permitted to raise objections as to the validity or defect in a charge. This leverage granted to the accused persons and the ruling of the court before determination of substantive suit has occasioned damages ranging from unnecessary interlocutory appeals on the rulings of the court, thus leading to delay in justice.

Every accused person shall, subject to the provisions of section 100 and of subsection (2) of section 223 of this Act, be present in court during the whole of his trial unless he misconducts himself by so interrupting the proceedings or otherwise as to render their continuance in his presence impracticable.

However, the criminal procedure act provides for instances the presence of the accused person can be dispensed with in a proceeding. Thus, Section 100 (5) of the Act states that whenever the attendance of an accused has been so dispensed with and his attendance is subsequently required the cost of any adjournment for such purpose shall be borne in any event by the accused.

In addition to any other power conferred on a Court the court may, if it considers it proper so to do on adjournment granted at the request of either or any party, direct that the amount payable to any witnesses in accordance with the provisions of this Act and any rules of court, or such sum not exceeding such amount aforesaid as the court may fix, shall be paid by the party requesting the adjournment to such witnesses as may be present and whose evidence it has not been possible to take owing to the granting of the adjournment.

The community effect of the above provision of the law is that some accused persons in their quest to avoid seeing justice being done can go to any extent t pay any amount of cost awarded against then for adjournments and the lacuna in the act as to the number of adjournment the court can entertain for a particular case, has given room to frivolous adjournments.

If during any proceedings before a court it becomes necessary to adjourn the hearing of the same, the court may from time to time adjourn such proceedings after or without hearing the evidence, if it thinks fit, to a certain time and place, to be then appointed in the hearing of the parties or the legal practitioners representing them and if the defendant is in custody the court may admit him to bail, as in this Act provided, or by its warrant remand him to prison or other suitable place of security for any time not normally exceeding eight days but if necessary for such longer period as the court may consider advisable, and if such remand shall not be for longer than three clear days the court may order the person in whose custody the person remanded is, or any other fit officer or person, to continue to keep the accused in his custody, and to bring him again before the court at the time appointed for continuance of the case.

If a court is satisfied that an accused person who has been remanded is, by reason of illness or accident, unable to appear personally before the court at such adjournment as in section 236 of this Act mentioned, such court may, in the absence of the accused person, order him to be further remanded for such time as may be deemed reasonable and cause him to be so informed in writing.

The position of the law in granting of bail in Criminal Procedure Act has received judicial imprimatur particularly in the recent case of Adeleke v State where the court held:

Section 118 (1) A person charged with any offence punishable with death shall not be admitted to bail, except by a judge of the High Court. Where a person is charged with any felony other than a felony punishable with death, the court may, if it thinks fit, admit him to bail. When a person is charged with any offence other than those referred to in the two last preceding subsections, the court shall admit him to bail, unless it sees good reason to the contrary. The effect of granting bail especially in non capital offences is not to set the accused person free at all times in the criminal process, but to release him from custody of the law and to entrust him with the assurance of appearing for his trial at any specific time and place.

Where any person is brought before a court on any process in respect of any matter not included within section 118 of this Act, such person may, in the discretion of the court, be released upon his entering, in the manner hereinafter provided, into a recognisance conditioned for his appearing before such court or any other court at the time and place mentioned in the recognisance.

The amount of bail to be taken in any case shall be in the discretion of the court by whom the order for the taking of such bail is made, shall be fixed with due regard to the circumstances of the case and shall not be excessive.

When any person has been taken into custody without a warrant for an offence other than an offence punishable with death, any officer in charge of a police station may, in any case, and shall, if it will not be practicable to bring such person before a magistrate or justice of the peace having jurisdiction with respect to the offence charged within twenty-four hours after he was so taken into custody, inquire into the case, and, unless the offence appears to such officer to be of a serious nature, discharge the person upon his entering into a recognisance with or without sureties for a reasonable amount to appear before a court at the time and place named in the recognisance but where such person is retained in custody he shall be brought before a court or justice of the peace having jurisdiction with respect to the offence or empowered to deal with such person by section 484 of this Act as soon as practicable whether or not the police inquiries are completed.

Section 20 empowers the police officers in charge of police stations to make report to the nearest magistrate the cases of all persons arrested without warrant within the limits of their respective stations whether such persons have been admitted to bail or not. The rationale behind this provision is to ensure that the liberty of citizens are preserved and not restricted unnecessarily.

 

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